HomeMy WebLinkAboutUnion 04-01-19 IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
· (the "Union")
ST. LAWRENCE COLLEGE
(the "College")
.RE: GROUP GRIEVANCE 341702
Before: M.G. Mitchnick - Chair
Ronald Kelly - Union Nominee
John Podmore - Employer Nominee
Appearances:
For the Union: Susan Ballantyne - Counsel
Mary Ann White - Chief Steward Local 417
For the College: J. Lynn Thomson - Counsel
Cindy Bleakney - Human Resources
Amanda Holmes - Student-at-law
Hearing held in Kingston, Ontario on October pt, 2003.
.AWARD
The College has long had a practice of providing hand-completed survey forms to
· students for course and professor feed-back. In the fall of 2002 the College announced
that it had engaged a web-based private contractor in Kingston to design and implement a
computer-software system whereby the evaluation forms could be accessed and
completed by students, and then compiled, electronically. A number of announcements
and explanations were communicated .to the staff in connection with this new on-line
program. A November 19~ memorandum, from Pennie Cart-Harris, the Executive
Director of Human Resources, for example, read:
TO: All full time faculty in post secondary programs
This is survey week - November 18t~ - 22nd
With the introduction of this new electronic process, there are bound to be
questions! We hae endeavoured to answer the ones that we are aware of!.
If you have a question which we have not answered here, please do not
hesitate to contact me. I will ensure that you get an answer! Please
encourage your students to go to the College website and respond to the
surveys for your courses.
FREQUENTLY ASKED QUESTIONS by FACULTY:
What is Cyberera. ca and how does the feedback process work?
Cyberera. ca is a web based organization, based in Kingston, Ontario,
offering secure data collection services in the industry, government and
education sectors. Students log-on to the cyberera, ca secure website and
access individual WebPages listing the courses they are taking. The student
will answer a series of evaluation questions and add comments as
warranted. The data is collated into a database. Faculty may access the
aggregate results for only the courses they are teaching at the end of the
semester and for their School and campus.
Is the service secure? The service is secure as it has the following: SS:
secure socket layers, a firewall and all ports are blocked with only two
exceptions. In addition ftp is not available. These tested measures provide
us with a secure service.
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Why is the College not doing this internally? The College chose to seek
the services of an external sUpPlier Xo expedite the provision of this
electronic service for students and faculty. Overall, this service will be
more effective and efficient than that provided by the previous supplier:
When may I review the results of surveys completed by the students in
my courses? .Immediately after the semester -has officially ended. And no,
other teachers will not be able to see your results! Access is through your
employee number and is security protected.
How do I log-on? Goto www.s!,0n;ca,'click on Student Services and then
click on Student Course'Feedback. Simply use your first and last name
coupled with your employee number from your pay stub up°n .first log-in.
Then you ~wffi he asked to create a secure private password. You may log-
on now and Cyberera will se~nd you an e-mail reminder if you'Would prefer.
If a course is taught by more than one faculty, how wiB I get my own
results? Each student will have access to a survey for each of their
courses. If they have more than one teacher for the same course, the course
will be listed separately for each teacher. That way separate results will be
available to each teacher,
What prevents students from completing a number of surveys for the
same course? Students will only have access to surveys for courses they
are enrolled in. Once the survey is completed and submitted, it can not be
accessed again.
What prevents a student from getting a number of their classmates
student numbers and completing the survey for them? Well first, their
integrity! Second, access to the surveys is password protected. Third, they
are advised that if they complete the survey for anyone other than
themselves, it will be treated as a major violation trader the student code of
conduct and they will be subjected to severe academic penalty.
What will the student feedback be used for? As a teacher, this feedback
will offer you some insights into the perceptions of your students. Over
time, you will know what works well and what you might want to change.
Formal student feedback provides an opportunity for your Director to gain
some perspective on what goes on in your classroom. In discussions with
your Director, recognition of good teaching and best practices can occur!
Also, resourcescan be identified for areas needing change or improvement.
Why wouldn't we just do our own in-class solicitation of student
feedback? Most of you do... and are encouraged to continue to do so!
However, students want an oppommity to provide formal feedback to the
College. Also, the College believes that formal student feedback is an
integral part of maintaining academic standards of teaching excellence.
Can other questions be added to surveys? On-going consultation with
faculty will take place to improve the survey itself... Yes, more questions
can be added.
What do I do if I can't log-on? At the log-in page, insert your e-mail
address in the 'forgot your password?' Section and Cyberera will assist
you.
Cyberera, the contractor engaged for the program, put out information as well, describing
the initiative for example in the following terms:
Why course evaluations?
· Allows students to provide valuable feedback.
· Helps each faculty member evaluate teaching style and. content
relevancy.
· Helps directors identify guidance and assistance.
· Helps the College identify opportunities for growth and
improvement:
· Course evaluations are performed to help learning institUtions do the
best job they can.
· Course evaluations provide comparative data and identify
oppommities for improvement.
· Course evaluations can provide guidance for both individual teachers
as welI as each college in seeking the best courses, delivery style and
content~
· Course evaluations are also one important manner in which stUdents
can reflect and provide opinions regarding quality and integrity.
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Notwithstanding the various efforts to allay faculty concerns, however, there were
concerns over the notion of an outside contractor conducting this survey and posting the
responses on its web, and the Union ultimately filed a "Group Grievance" which provided
as follows:
Statement of Grievance:
That the College is violating Article 6 of the academic collective agreement
and the Freedom of Information and Protection of Privacy Act specifically
but not exclusively in that the student feedback information is not restricted
to the individual and is being shared without the express permission of the
member.
Settlement Desired:
· a violation be declared
· a cease and desist
· a reversal of any discipline or penalties resulting from this process.
The College's Step 2 Reply to the grievance, essentially re-iterated before the board at
the hearing, indicated:
RE: Group Grievance dated February 18, 2003 - Student Feedback
Thank you for meeting with Ian Wilson;Cindy Bleakney, Mary Ann White
and me at Step 2 of the grievance process on Monday, March 3, 2003, to
discuss your grievance dated February 18, 2003, that states:
Statement of Grievance:
That the College is violating Article 6 of the academic
collective agreement and the Freedom of Information and
Protection of Privacy Act specifically but not exclusively in
that the student feedback information is not restricted to the
individual and is being shared without the express permission
of the member.
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Settlement Desired:
· a violationbe declared
· a cease and desist
· areversal of any discipline or penalties resulting from
this process
At the grievance meeting, Mary Ann White spoke on behalf of all of the
gdevors and asked that violation of Article 31 be added to the grievance:
My understanding of the substance of the Union's argument is faculty
members are being denied natural justice; that a record is being established
contrary to College Policy regarding personnel files in that files are being
created outside the.an, spices of the personnel file; and that the College is in
violation of the Freedom of Information and Protection of Privacy Act,
specifically, S.2I(1)(a), S.2t(2)(d), S.21(2)(e), S:21(2)(g), S.21(2)(i),
S..21(3Xd), S.21(3)(g)~ S.39(1), S.39(2)(a), S.39(2)(b), S.39(2)(c), S.40(2),
S.41(a), S.41(b), S.41(c), S.47(2Xa), S.60(t)(a) and S.61(1)(b). I am
attaching a copy of S.21(1) through S.21(3), S.39(1) through S.39(2), S.40,
S.47(2) and S.61(1) of the Freedom of Information and Protection of
Privacy Act for your reference.
With respect to the claim of a violation of S.41(a), (b) and (c), it was stated
that this claim was, in particular, in relation to the comments section of the
feedback form.
The Union Claims the form. is unreliable and the process has no validation.
It was stated that, although there has been no adverse impact on any
bargaining unit members yet, there is no formal method for the individual to
counter anY of the comments because the file is in the possession of another
organization and is not part of the personnel file. The Union is concerned
about the security of the information because the Web-Site where the
information resides is not covered by the Freedom of Information and
Protection of Privacy Act.
First, let me assure you that, regardless of the physical location of this
information~ it is considered to-be College property and it will be treated as
such. Any legislated requirement that applies to the College with respect to
the care and protection of this information extends to organizations that are
contracted by the College to provide this service on its behalf. The fact that
this information resides in a location that is not under the College's direct
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control does not reduce any legislated responsibility the College may have
with respect to its collection, maintenance and use.
"Article 6", .the Article in the collective agreement upon which the Union rested its
grievance, is simply the "Management Rights" Article. That is a good indication of the
difficulty that the Union has in fmding a contractual basis for challenging the action of a
College in implementing, at least in some form, a process by which feedback from
students on the courses and professors they have experienced can be obtained. And the
general management right of a College to do so has been affirmed long ago by the case
law: Seneca College,. November 11, 1977 (H,D. Brown); MohawkCollege, November 15,
1984 (A. Kruger). As that award noted, at pp. 5-6:
Under the collective agreement the faculty had no way.of preventing the
Employer from using the SRI's for purposes of evaluating the faculty. This
is not to deny,the right of faculty members who are disciplined from
grieving in cases where the SRI's play a role in the decision to impose
discipline. But this is not the issue before us.
From the grievance here, however, the concern does not appear to be about the
obtaining of"student feedback" in itself. That has'been a College practice for years. The
concern, one can see, is really about the security of the data, and the possibility of
improper dissemination (i.e., beyond the professor and her or his Director). And to either
terminate or at least add more controls to this new electronic program, the Union invokes
the provisions of the Freedom oflnformation and Personal Privacy Act, relying as well
on the recent pronouncement of the Supreme Court of canada in Parry Sound (District)
Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] SCC 42. The
Court in that decision, with an eye at least in part on the language of section 48(12)0) of
the Ontario Labour Relations Act, mandated boards of arbitration to treat as part of the
collective agreement under which they are appointed the provisions of the Human Rights
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Code "and other employment-related statutes". There is no provision comparable to
section 48(12)0) in the Colleges Collective Bargaining Act, but the College
acknowledges that the Supreme Court in Parry Sound did not rest its findings exclusively
on that provision. The response of the College, rather, is that the Freedom of Information
and Personal Privacy Act is not in its essence an "employment-related statute", and that
in any event this kind of record, involving labour relations or employment-related
matters, is expressly excluded by the Act itself from its scope (via section 65(6)(3)).
As not. edby Arbitrator Mikus in Crown in Right of Ontario and O.t'.S.E.U., Re:
Binkley, (1996)61 L.A.C. (4t~) 284, while, for example, the Elections Act is not
generally-speaking an "employment-related" statute, specific provisions of it may
nonetheless have an "employment-related" application. In terms of the Freedom of
Information and Personal Privacy ACt, a review of its broader terms reveals the
possibility that the kind of student comment on "record" at issue here may well be
thought to fall within its terms. Consideration of some of its operative provisions,
however, at the same time highlights some of the difficulties that would exist in applying
those provisions to this kind of student "opinion" and feedback; and at the end of the day,
there appears to be no obvious basis for disagreeing with the College's submission that
this particular kind of"recOrd" is excluded t~om the coverage oft he Act expressly.
The provisions referred to by the parties are as follows:
"personal information" means recorded information about an identifiable
individual, including:
(g) the views or opinions of another individual about the individual, and'
"record" means any record of information however recorded, whether in
printed form, on film, by electronic means or otherwise
38.
(2) No person ,shall collect personal information on behalf of an institution
unless the collection is expressly authorized by statute, used for the
purposes of law enforcement or necessary to the proper administration of a
lawfiflly authorized activity.
39. (1) Personal information shall only be collected by an institution
directly from the individual to whom the information relates unless, (a) the individual authorizes another manner of collection;
(b) the personal information may be disclosed to the institution
concerned under section 42 or under section 32 of the Municipal
Freedom of Information and Protection of Privacy Act;
(c) the Commissioner has authorized the manner of collection under
clause 59(c);
(d) the information is in a report from a reporting agency in
accordance with the Consumer Reporting Act;
(e) the information is collected for the purpose of determining
suitability for an honour or award to rec%mize outstanding
achievement or distinguished service;
(f) the information is collected for the purpose of the conduct of a
proceeding or a possible proceeding before a court or tribunal;
(g) the information is collected for the purpose of law enforcement;
or
(h) another manner of collection is authorized by or under a statute.
40. (2) The head of an institution shall take reasonable steps to ensure that
personal information on the records of the institution is not used unless it is
accurate and up to date.
41. An institution shall not use personal information in its custody or under
its control, except,
(a) where the person to whom the information relates has identified
that information in particular and consented to its use;
65. (6) Subject to subjection (7), this Act does not apply to records
collected, prepared, maintained or used by or on behalf of an institution in
relation to any of the following:
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1. Proceedings or anticipated proceedings before a court, tribunal or
other entity relating to labour relations or to the employment of a
person by the institution.
2. Negotiations or anticipated negotiations relating to labour
relations or to the employment of a person by the institution between
the institution and a person, bargaining agent or party to a
proceeding or an anticipated proceeding.
3. Meetings, consultations, discussions or communications about
labour relations or employment-related matters in which the
institution has an interest.
(emphasis added)
Undoubtedly, the comfort level with even a new electronic system would have
remained higher had the College elected to implement the system on apurely "internal"
basis. However, it might be mentioned that the individuals behind "Cyberera" are part-
time employees of the College, and (given their special expertise) might well have been
the persons.entrusted with this task by the College in any event. Be that as it may, this is
all about "control", and confidentiality. There is no way that a College could ever ensure
that statements by individual students, about a course are "accurate" (even as a matter of
"opinion"). The College recognizes, that, and acknowledges that any such statements
need to be taken with a grain of salt... But it is precisely because of that lack of control
over what a student might choose to say that maintaining control over "publication"
becomes such a sensitive issue.
As a matter of law, however, the Ontario Court of Appeal in Solicitor General of
Ontario et al. v. Mitchinson et al. (2001), 203 D.L.R. (4t~) 538 chastized the Information
and Privacy Commission for giving section 65(6)(3) other than its plain meaning. And
the instant "communications about.., employment-related matters" (fromOPSEU's
point of view, how the teacher is doing his/her job) would,seem t° fall squarely within
the language of the exclusion. The responses of the students are not viewable, according
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to the College, by even the contractor providing the service; under the plan they are
accessible, in a very controlled way, only by the professor and his/her Director/manager.
If the College turns out to be wrong about that, there may, as discussed, he legal
repercussions (somewhere) that the College will have to deal with.
That said, however, there being no apparent violation at this point of~Jae collective
agreement, and the Freedom of Information and Personal Privacy Act appearing by its
terms to expressly exclude from its scope this kind of "communication", the board finds
that it has no basis in law to do other than dismiss the grievance before it.
The grievance is so dismissed.
Dated at Toronto this 19t~ day of January, 2004.
M.G. Mitchnick
"Ronald Kelly"
Ronald Kelly
"John Podmore"
John Podmore